The Biggest Problem With Civilian Trials for Terrorists

No, it’s not that our Federal court system can’t handle a case like this.

No, it’s not that New York can’t handle it (though we are about to open old wounds).

No, it’s not that Barack Obama is doing it.

No, it’s not even that we conferring constitutional rights to someone who was neither a citizen or living here at the time of the crime (though that is a big issue).

James Galyean, a former federal prosecutor and former counsel on the US Senate Judiciary Committee, spells it out.

The criminal justice system is not the proper place to determine his fate. Our criminal courts provide protections to our citizens that should not be provided to a terrorist, and may actually damage national security.

Just think about the discovery requirements that could be placed on prosecutors. For instance, in the trial of the 1993 World Trade Center bombers, prosecutors were required to turn over to defense lawyers a large amount of intelligence information. Documents from that discovery production, which were never supposed to be provided to anyone outside the defense team, were later found in an al-Qaeda hideout. Let me say that again, confidential documents from a trial in New York were later found in the hands of al-Qaeda.

Now consider that KSM was captured in a lightening raid in Pakistan. The intelligence that led to that capture has been the subject of a number of reports. However, al-Qaeda would love to know for sure where that information came from and how it was obtained. In addition to that, they may be able to learn a number of other things from discovery in this trial.

Emphasis his. And he also notes that even military tribunals have their hands tied

The Obama Administration just approved new rules for military commissions. The President’s new rules make obtaining a conviction much more difficult, maybe impossible in some cases. The new rules require that a defendant be allowed access to any classified information used against him. This may prevent a number of trials from going forward if the military decides it cannot afford to “burn” the method or source of the information. And since the new rules are now the President’s rules, it would be his fault if the terrorist were not convicted, or perhaps not even tried.